In Tsuruta v Tsuruta,2023 WL 5114936 (Eighth Circuit, 2023) the Eighth
Circuit affirmed the order of the District Court which granted the Petition of Naoteru Tsuruta (“Naoteru”) for the return of
the parties' child to Japan
In 2015, Sarah gave birth to L.T. in Miami, Florida. At the time, Naoteru was living in the U.K. Ten months after L.T. was born, Sarah and L.T. moved to the U.K. to live with Naoteru. In 2018, Naoteru and Sarah married, and the family moved from the U.K. to Japan. While in Japan, L.T. attended school/daycare, learned to speak Japanese and English, engaged in extracurricular activities, traveled, and spent time with extended family. In November 2019, Sarah and L.T. traveled from Japan to Missouri to visit Sarah’s family. In February 2020, Sarah and L.T. voluntarily returned to Japan. Sarah became unhappy with the living situation in Japan and repeatedly told Naoteru she wanted to leave Japan and get a divorce. After continued arguments between Naoteru and Sarah, Naoteru attempted to conceal L.T.’s Japanese passport and expired U.S. passport. On October 15, 2021, Sarah found the concealed passports in Naoteru’s work storage facility and went to the U.S. Embassy in Japan. At the Embassy, Sarah reported she feared for her life and her child’s safety. The Embassy issued an emergency passport, and the two went directly to the airport and flew back to the United States. Sarah and L.T. had return flights booked for March 15, 2022. In November 2021, Sarah filed a petition for divorce in Missouri. After learning of the divorce filings in March 2022, Naoteru filed the present petition to have L.T. returned to Japan under the Hague Convention.
The only contested element of the prima facie case was L.T.’s habitual residence prior to being removed in October 2021. At an evidentiary hearing, Naoteru argued Japan was L.T.’s habitual residence because L.T. had spent most of her time in Japan for the previous three years, attended school in Japan, participated in extracurricular activities in Japan, and gotten to know the extended family in Japan. Additionally, L.T. had spent limited time in the United States before being removed in October 2021, spending only a few months in Missouri before voluntarily returning to Japan. Sarah argued Japan was not L.T.’s habitual residence because Sarah was coerced into living in Japan, L.T. had significant connections to the United States, Japan was never intended as a permanent residence, and L.T. never acclimated to Japan. To support her coercion argument, Sarah asserted Naoteru had her sign a marriage license she didn’t understand, controlled all of the finances, isolated L.T. from Sarah by only speaking Japanese, and controlled all important decisions. Sarah also argued Naoteru’s petition was an effort to “forum shop.” Sarah asserted Naoteru wanted to avoid a child custody case in the United States due to negative experiences in previous U.S. divorce proceedings with a different woman including the issuance of warrants for his arrest for failure to pay child support.
The district court noted the determination of habitual residence “is a ‘fact-driven inquiry’ and ‘depends on the totality of the circumstances specific to the case.’ ” The district court then found Naoteru had shown by a preponderance of the evidence that Japan was L.T.’s habitual residence prior to removal in October 2021. In reaching this conclusion, the district court relied on several factors including: evidence showing L.T. acclimated to Japan between 2018 and 2021, evidence showing Sarah and Naoteru had a “settled purpose of creating a home in Japan,” and a lack of evidence to show Sarah was coerced into living in Japan. The district court concluded the lack of physical abuse, violence, or threats of violence as well as limited evidence of control distinguished this case from other instances where coercion impacted the habitual residence determination.
The Eighth Circuit observed that Determining habitual residence is a mixed question of fact and law. Monasky, 140 S. Ct. at 730. It found that the district court did not commit a clear error in determining L.T. was “at home” in Japan as of October 15, 2021. L.T. spent most of her time in Japan since 2018. She attended school/daycare in Japan. She participated in activities in Japan. While Sarah might not have intended to spend the rest of L.T.’s life in Japan, Japan was where L.T. was “at home” on the relevant date.
On appeal, Sarah again argued Japan could not be L.T.’s habitual residence because Sarah was coerced into living in Japan and therefore did not intend to make Japan L.T.’s home. Sarah cites two cases for the proposition that one parent being coerced into living in a country is relevant to the habitual residence determination because it affects the intent of the parents. See Application of Ponath, 829 F.Supp. 363, 368 (D. Utah 1993) (“Petitioner’s coercion of respondent by means of verbal, emotional and physical abuse removed any element of choice and settled purpose which earlier may have been present in the family’s decision to visit Germany.”); Tsarbopoulos v. Tsarbopoulos, 176 F.Supp. 2d 1045, 1049 (E.D. Wash. 2001) (“The verbal and physical abuse of one spouse by the other is one of several factors in the Court’s determination of the existence of ‘shared intent’ to make a place the family’s ‘habitual residence.’ ”). The district court addressed these cases and found: “The physical abuse, verbal abuse, and controlling behavior that motivated the courts in both Tsarbopoulos and Ponath are simply not present here. There is no evidence of physical abuse, violence, or threats of violence in this case. Additionally, having considered the testimony of Petitioner and Respondent and having reviewed the text message exchanges between the parties, the court did not find evidence of the type of verbal abuse or controlling behavior that would suggest that Petitioner was coerced or forced into staying in Japan.” Therefore, Sarah’s coercion argument on appeal was inconsistent with the district court’s factual findings, which are not clearly erroneous.
Sarah also argued, for the first time on appeal, that Naoteru had “unclean hands” which precluded him from seeking relief in this case. Given the factual questions and the lack of a record or findings as to a connection between Naoteru’s allegedly improper conduct and this case, the Court declared that this was not the time to decide whether “unclean hands” applies to Hague Convention cases.
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